Mere assertions are not enough, my lord

In which I take on the President of the Queen’s Bench Division (over a meaningless throwaway assertion)

The law does not like mere assertions. Evidence is normally sought, or pleaded, upon which to base an assertion. So, when describing the taking and retention of handwritten notes by its member, the Parole Board apparently says, in something called the Parole Board Handbook (which I can’t find online anywhere)

Personal notes held by members in handwritten from in notebooks and retained by them do not constitute personal data as defined in the [Data Protection Act] and will not be subject to it or the Freedom of Information Act.

one is tempted to ask “why not?”

The temptation only increases when the President of the Queen’s Bench Division, who quotes the above handbook, in a judicial review case about the taking of and making available a record of the Parole Board’s proceedings, says

…notes taken by the chair for his or her own use or notes made by a judge or chair where there is an audio or visual recording of the proceedings…do not constitute the record. Nor do they constitute personal data

[emphasis added]

I am not concerned with the judge’s first assertion, which is supported by citation of previous authority, but with his second. Why do handwritten notes, taken by a member of the Parole Board, not constitute personal data?

At this point we need to navigate our way through section 1(1) of the Data Protection Act 1998 (DPA) which defines what personal data means. And before we consider what “personal data” means, we have to know what “data” means:

“data” means information which—

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,

(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; or

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d)

It seems to me that handwritten notes of a Parole Board member are not being processed, and not intended to be so processed, by means of “equipment operating automatically etc”, so (a) and (b) are out. Nor, I am willing to assume, are they recorded (or intended to be recorded) as part of a filing system, so (c) is out. Nor are they a health, education or publicly accessible record as defined by section 68, so out goes (d).

However, we then come to (e). The notes are recorded information. And the question as to whether they are held by a public authority is answered by reference to Schedule One of the Freedom of Information Act 2000 (FOIA) (because, as the DPA says, “‘public authority’ means a public authority as defined by the Freedom of Information Act 2000″). And there, nestling comfortably in part VI of Schedule One (the list of public authorities) are the words “The Parole Board”.

So, a Parole Board member’s handwritten notes of a hearing are, I submit, “data” for the purposes of section 1(1)(e) of the DPA. And as a hearing of the Parole Board is convened to consider a person’s liberty, or lack thereof, the notes are certainly going to be “data which relate to a living individual who can be identified…from those data”.

Bingo! The notes are, despite what the learned judge, and the Parole Board themselves (apparently) say, “personal data”. If I’m right, they are subject to the DPA (which is not of course to say that there might not be exemptions to disclosure). Moreover, as the board members in a very real sense are the Parole Board, I find it difficult to see how the notes are also not information held by a public authority for the purposes of FOIA (again, which is not to say that there might not be very obvious exemptions to disclosure under FOIA).

In the case itself, the Chairman’s notes from the applicant’s hearing turned out to have been destroyed, in line with a policy of destruction after nine months. (In a rather obvious indication that at least some people applying their minds to the subject thought that DPA was engaged, the reason for this was given as that Parole Board felt “there was an obligation under Data Protection legislation not to keep personal data longer than was necessary”). The court declined to grant an order, because the Parole Board had already begun a review of its retention and disposal policy prior to the instant hearing, but it did declare that the policy of destruction after nine months could not be lawful.

I hope I’m never in a position of having been a prisoner at an unsuccesful Parole Board hearing, but in the unlikely event that I am, I will make a subject access request under section 7 of the DPA, because I will argue that the members’ handwritten notes are my personal data, to which I am entitled.

p.s.

I’ve wondered if I’m missing something here. I would honestly be very pleased to be corrected if so.

2 Comments

Filed under Data Protection, Freedom of Information, Rehabilitation of offenders

2 responses to “Mere assertions are not enough, my lord

  1. SIllySod1

    The judge distinguished between those notes of the Chair
    which were the record (paras 20 & 21), e.g. where there is
    no A/V recording for the purpose of the record, and those which
    were his/her personal notes where there was such a recording (para
    23). The latter are not “held” by the Board within the meaning of
    s.1(1)(e), so as to amount to data (and, therefore, personal
    data).

    • I think that’s probably how it would be decided, if it fell to be properly decided. But I struggle to see how notes taken in order to assist with taking a decision are simply “personal”. In a very literal sense the members of the Parole Board *are* the Board. Notes which inform a decision of the Board are surely held by or (if e.g. held by an administrative member of staff) on behalf of the Board?

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